EXPLANATORY STATEMENT
Migration Regulations 1994
DETERMINATION – MEANING OF ENROLLED IN FULL-TIME STUDY AT AN EDUCATIONAL INSTITUTION 2015
- This Instrument is made under subregulation 2.06AAB(3) of the Migration Regulations 1994 (the Regulations).
2. The Safe Haven Enterprise (Class XE) visa (safe haven enterprise visa) was introduced as a class of temporary visas by the Migration Amendment (Resolving the Asylum Legacy Caseload) Act 2014. Subsection 46A(1A) of the Migration Act 1958 (the Act) has the effect that an unauthorised maritime arrival in Australia who holds, or has ever held a safe haven enterprise visa (visa holder) is not prevented from making a subsequent valid application for visa subclasses prescribed in the Regulations, if the applicant satisfies any employment, educational, or social security benefit requirements as prescribed under subregulation 2.06AAB(2). Those requirements are satisfied by a visa holder, whether the applicant himself or herself under paragraph 2.06AAB(2)(a), or a member of the same family unit as the applicant under paragraph 2.06AAB(2)(b).
3. Under subparagraph 2.06AAB(2)(a)(ii), the educational requirement is satisfied if the visa holder, for a minimum period or periods totalling 42 months (whether consecutive or non‑consecutive), is enrolled in full‑time study at an educational institution in a regional area, as determined by this Instrument. Regional area is specified by separate legislative instrument.
4. The purpose and operation of the Instrument is to determine the meaning of enrolled in full‑time study for the purposes of subparagraph 2.06AAB(2)(a)(ii) of the Regulations. In order to be enrolled in full-time study, a visa holder must have enrolled and commenced in full-time study at a primary school, a secondary school (or other equivalent educational institution authorised to issue a Senior Secondary Certificate of Education in the relevant State or Territory tertiary institution), or an educational institution qualified to issue an Australian Qualifications Framework (AQF) qualification.
5. The visa holder must, for the purposes of study, be physically located in a regional area; this requirement applies for the entire period or periods of full-time study totalling a minimum of 42 months (whether consecutive or non-consecutive). Where the visa holder is enrolled in a primary or secondary school, that visa holder’s physical location may be at a regional school, or some other place in a regional area; for example, the visa holder may undertake external study (wholly or partly) provided that the visa holder’s physical location is in a regional area.
6. Where a visa holder has enrolled in full-time study an educational institution qualified to issue an AQF qualification, he or she cannot undertake study of a course that is wholly online, by correspondence or distance, or otherwise on an external study basis; the visa holder must have contact hours with the educational institution and those contact hours must take place in a regional area. If and when such a visa holder is undertaking study of a course that is partially online, by correspondence or distance, or otherwise on an external study basis, that visa holder must be also be located in a regional area.
7. Where a visa holder is enrolled in full-time study in an educational institution qualified to issue an AQF qualification, he or she must be enrolled in a course which leads to an AQF Level 1 qualification or higher. However, for each applicant of a specified visa, only one course of study undertaken by a safe haven visa holder leading to an AQF Level 1 qualification may be considered in determining whether the visa applicant has satisfied the educational requirement in subparagraph 2.06AAB(2)(a)(ii). In contrast, every course leading to an AQF Level 2 or higher qualification may be considered for the purposes of each visa application. Only one course at a time may be considered as enrolled in full-time study at an educational institution; if a visa holder undertakes more than one course concurrently for a time, only one of those courses will be considered for that time.
8. Consultation was undertaken before the Instrument was made with the Department of Education.
9. The Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required (OBPR Reference 17300).
10. Under section 44 of the Legislative Instruments Act 2003 the Instrument is exempt from disallowance and therefore a Statement of Compatibility with Human Rights is not required.
11. The Instrument commences on 18 April 2015.